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ESTATE PLANNING THROUGH WILLS: THE ISLAMIC PERSPECTIVE
Estate planning is a process where an individual formulates a transfer of assets in anticipation of death to preserve the maximum amount of wealth for the intended beneficiaries. It is a crucial aspect of financial management that ensures the distribution of one’s assets after death. In lieu of the same many people often turn to wills to dictate how their properties shall be distributed among their heirs and non-heirs.
In Kenya, the law recognizes the importance of wills as a legal instrument for estate planning. The Law of Succession Act, (Cap 160 Laws of Kenya) governs the creation, execution, and validity of wills in Kenya. A will must be in writing (except for oral wills), signed by the testator (Or by someone else in their presence and at their direction), and witnessed by at least two competent witnesses at the same time.The Law of Succession Act provides under Section 5(1) that every person who is of sound mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses.
Unlike the rules applying to conventional will-making testamentary freedom is not absolute in Islam. The substantive legislation on inheritance in Kenya is the Law of Succession Act (Chapter 160, Laws of Kenya).
Section 2(2) and 2(3) of the Law of Succession Act stipulates as follows: –
“(2) The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.
(3) Subject to subsection (4), the provision of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim law.”
The primary sources governing inheritance in Islam are the Holy Quran and the Sunnah (teachings of Prophet Muhammad (Peace and blessings of Allah be upon him), which provide detailed guidelines on inheritance distribution. The below two rules apply when making a will (wasiyya) under the Shariah law:
- A testator can bequeath up to one-third of their estate to beneficiaries (non-heirs) who are not automatically entitled to inheritance.
- The remaining two-thirds of the estate is distributed to the automatic beneficiaries (heirs) according to the specific shares prescribed in the Quran (4:11, 12 & 176). This mode of distribution ensures that close relatives such as spouses, children, parents, and siblings obtain their designated portions of the inheritance.
However, these two rules are not absolute but have an exception that allows a testator to bequeath the entire estate as long as it does not offend the rules that are outlined in chapter 4 of the Quran.
A wasiyya provides an opportunity for the testator to be able to protect other persons apart from the heirs, for example, a child that is born out of wedlock can be provided for in a will.
It can also serve as a tool for the testator to give to charity.
A testator may through a will dictate how and where he will be buried. The same is quite important as it reduces the conflicts that may arise between his/her heirs.
While the Law of Succession Act permits freedom to distribute all assets to beneficiaries of your choice and by shares you deem fit; Muslims must ensure that their will does not contradict Shariah law regarding the two-thirds rule.
It is also advisable to assign a trustworthy and reliable executor/executrix (wasi) who will oversee the distribution of the estate according to the terms of the will and Islamic principles.
Individuals who profess the Muslim faith may not be fully aware of the significance and requirements of Islamic estate planning and thus some complexities may arise when making a will to adhere to both Kenyan law under the Law Succession Act and Islamic inheritance principles. Consulting with legal and religious advisors familiar with both domains is advisable to ensure the validity of a will is achieved.
Islamic estate planning through wills in Kenya involves traversing both legal requirements and religious obligations. By following the principles outlined in Islamic jurisprudence and the legal framework of Kenya, individuals can ensure that their assets are distributed according to their wishes and religious beliefs. Muslims in Kenya must seek guidance from qualified professionals to draft wills that are both Shariah-compliant and legally valid, therefore, fulfilling their duties towards family and following Islamic teachings.
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